US v. George, Crim. A. No. 91-0521 (RCL).

• Decision Date: 05 March 1992
• Docket Number: Crim. A. No. 91-0521 (RCL).
• Citation: 786 F. Supp. 56
• Parties: UNITED STATES of America v. Clair E. GEORGE, Defendant.
• Court: U.S. District Court — District of Columbia

786 F. Supp. 56

UNITED STATES of America v. Clair E. GEORGE, Defendant.

Crim. A. No. 91-0521 (RCL).

United States District Court, District of Columbia.

March 5, 1992.

Craig Gillen, Office of Independent Counsel, Washington, D.C., for U.S.

Richard Hibey, Anderson & Hibey, Washington, D.C., for defendant.

MEMORANDUM OPINION AND PRETRIAL ORDER # 5

LAMBERTH, District Judge.

This case comes before the court on the defendant's motion to compel the production of certain documents. The defendant, the former Deputy Director of Operations ("DDO") of the Central Intelligence Agency ("CIA") has been indicted for making false statements to Congress and to a grand jury and for obstruction of justice. He asks that the Office of Independent Counsel (IC) make available to him a variety of classified materials, including documents concerning the most sensitive areas of United States covert operations. The defendant argues that these documents are material to his defense and thus must be produced under Rule 16 of the Federal Rules of Criminal Procedure. The Independent Counsel opposes the production because, he argues, the defendant is seeking to obtain documents which have no connection whatsoever with the offenses with which the defendant is charged; further, the IC reminds the court that it should be cautious in ordering the production of such highly sensitive documents related to the national security of the United States. The court shall consider each of the defendant's requests category by category. For the reasons stated below, defendant's motion to compel shall be DENIED.

I. Procedural Background

On November 12, 1991, the court ordered the Independent Counsel to produce all of the documents obtained by the defendants and the pleadings in the cases United States v. North, Crim. No. 88-0080 (D.D.C.) and United States v. Fernandez, Crim. No. 89-00150-A (E.D.Va.). See Pretrial Order # 3. In that same order, the court required the parties to submit suggestions concerning how the court could most efficiently handle defendant's outstanding discovery requests. After considering the recommendations of counsel— who indicated that a period of negotiation might be fruitful, the court on November 20, 1991, ordered the parties to attempt to reach agreement concerning discovery with the provision that the defendant should file a motion to compel regarding any documents still in dispute.

The requests derive from letters written by defendant's counsel to the Independent Counsel on September 23, 1991, and October 22, 1991, which delineate 17 categories of documents sought by defendant. After several months of negotiation, the IC and the defendant have agreed to very little. Defendant seeks production of all of the documents in the remaining categories that he requested in the original letters.

II. Rule 16 of the Federal Rules of Criminal Procedure

Rule 16(a)(1)(C) of the Federal Rules of Criminal Procedure reads:

Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant. Fed.R.Crim.P. 16(a)(1)(C)

The key issue is whether the documents or other material sought to be produced are "material" to the defense. As the court has previously discussed in its November 12, 1991 memorandum opinion, the materiality requirement is not a heavy burden, but nonetheless the defendant must demonstrate that "pretrial disclosure of the disputed evidence would enable the defendant significantly to alter the quantum of proof in his favor." United States v. Ross, 511 F.2d 757, 763 (5th Cir.1975), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54. The documents at issue must "play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony or assisting impeachment or rebuttal." United States v. Felt, 491 F.Supp. 179, 186 (D.D.C.1979). When analyzing materiality, a court should focus first on the indictment which sets out the issues to which the defendant's theory of the case must respond. See United States v. Poindexter, 727 F.Supp. 1470, 1473 (D.D.C.1989), rev'd on other grounds, 951 F.2d 369 (D.C.Cir.1991). An "abstract logical relationship to the issues in the case" is not, however, sufficient to force the production of discovery under Rule 16. Ross 511 F.2d at 762. Materiality is, to some degree, a sliding scale; when the requested documents are only tangentially relevant, the court may consider other factors, such as the burden on the government that production would entail or the national security interests at stake, in deciding the issue of materiality. See id. at 763; Poindexter, 727 F.Supp. at 1473. It may also be relevant that the defendant can obtain the desired information from other sources. See Ross, 511 F.2d at 763.

III. General Comments

The court first must register its frustration at the length of time that this process has taken. The parties have negotiated for several months to almost no avail. The defendant has not refined his requests for documents at all; he continues to seek literally millions of documents not related to the Iran-Contra affair in any way, though defendant maintains that they may be material to his defense. Defendant does not even allege that the documents might adduce other, relevant evidence. Defense counsel quite candidly admits that the production of these documents might make the defendant immune to prosecution. See Transcript of February 14, 1992, Evidentiary Hearing at 9. The court knows of no provision in law that provides for either functional or actual immunity for this defendant.

Defendant's overriding justification for the production of these documents is that they will help him to present his "universe" as DDO. Yet he cannot possibly require all of these documents to create this universe, and, indeed, it is simply not true that these documents, if presented to a jury, would establish the context in which the defendant operated. The reports, cables, personnel files, etc., created by other people and about other people which were sent through his office tell only very little about the job of the DDO. If defendant seeks to make a limited point concerning the day-to-day tasks of the DDO, including the sort of information which passed over his desk or even the volume of that information, then he may do so, but he certainly does not require documents containing the most highly classified information in the United States to do so. Further, defense counsel has made no attempt to hone his requests or limit them to fewer documents that could serve as examples for the points which he wishes to make.

In his reply and his oral argument, defense counsel cites repeatedly to United States v. Fernandez, 913 F.2d 148 (4th Cir.1990), for the proposition that he must be able to discover documents concerning the context in which he worked. In Fernandez, the court said:

The nature of the charges against him demand that he be able to place his job before the jury in a concrete, palpable context, and that he be able to explain his understanding of the world in which he worked. Only against such a background could the jury realistically and fairly evaluate his allegedly false statements. Id., at 164.

Comparison of Fernandez's requests to those of this defendant demonstrate, however, that the Fernandez opinion is inapposite. The defendant in Fernandez requested a narrow array of documents which were directly related to the CIA's involvement with Contra resupply. Further, Fernandez sought these documents to show the truth of his allegedly false statements. In this case, the defendant demands the production of vast numbers of documents that have no connection to Iran-Contra simply to describe the "context" of all of his activities as DDO, not just those involved with Iran or Nicaragua or the Contras. These documents would have only the most minimal impact on a jury's ability to "realistically and fairly evaluate his Mr. George's allegedly false statements." Id.

Defendant claims that he is in a difficult position: he must prove the negative—that he had no knowledge of certain information when he testified and that he had no intent to lie. Yet defendant's response to this predicament is to attempt to prove the negative by proving everything else—that he had knowledge of lots of information which had nothing to do with Iran-Contra. Knowledge of other information does not prove a lack of knowledge about the issues in this indictment. The defendant mentions "critical" times and "flaps," situations where something has gone wrong with a field operation. He has suggested that he might have been "preoccupied," but he has never specified when these things occurred or how these instances might be material to this indictment.

Defense counsel also repeatedly admonishes the court not to look ahead to the Classified Information Procedures Act ("CIPA") hearings in which the court will determine what the defendant requires for his defense and hence what the government must declassify in order to proceed; yet, at the same time, defense counsel reminds the court that it will have another opportunity to consider the relevance of these documents during the CIPA process. Thus, documents discovered now may never make it to trial. The court cannot help but look ahead, given the fact that granting defendant's motion would grind this case to a halt. The CIA and the IC would spend months searching for all of the documents contained in defendant's burdensome requests and the defense team would request even longer to peruse them. The court would then be saddled with a...